COMPANIES AND INTELLECTUAL PROPERTY COMMISSION REPUBLIC OF SOUTH AFRICA MEMORANDUM OF INCORPORATION TRANSPACO LIMITED

Transcription

1 SP/PS /TRAN M OI - TRANSPACO LIMITED/# v1 This is the Memorandum of Incorporation tabled and adopted by way of a Special Resolution in accordance with section 16(1)(c) of the Companies Act No 71 of 2008 at the general meeting of the Company held on [ ] 2012 and has been initialled by the Chairman for purposes of identification. Chairman COMPANIES AND INTELLECTUAL PROPERTY COMMISSION REPUBLIC OF SOUTH AFRICA MEMORANDUM OF INCORPORATION of TRANSPACO LIMITED (Registration number 1951/000799/06) being a profit company which is classified as a public company ("the Company") The Company has adopted this unique form of Memorandum of Incorporation and, accordingly, the standard form of Memorandum of Incorporation for profit companies as contained in the Companies Regulations shall not apply to the Company. This Memorandum of Incorporation replaces the Memorandum of Incorporation of the Company that was in existence at the time of adoption of this Memorandum of Incorporation.

2 TABLE OF CONTENTS PART A THE MOI AND RULES INTERPRETATION CONFLICTS WITH THE MOI AMENDMENT OF THE MOI RULES... 9 PART B STATUS AND POWERS OF THE COMPANY STATUS AS PUBLIC COMPANY POWERS OF THE COMPANY LIMITATION OF LIABILITY PART C CAPITALISATION AND SECURITIES OF THE COMPANY SHARE CAPITAL RIGHTS OF THE ORDINARY SHARES VARIATION OF SHARE CAPITAL ISSUE OF SECURITIES COMMISSION REGISTER AND CERTIFICATES TRANSFER AND CONVERSION OF SECURITIES CAPITALISATION SHARES ACQUISITION OF SHARES ISSUED BY THE COMPANY DEBT INSTRUMENTS BENEF ICIAL INTERESTS JOINT HOLDERS OF SECURITIES LEGAL REPRESENTATIVES PART D SHAREHOLDERS RIGHTS AND PROCEEDINGS SHAREHOLDERS RIGHT TO INFORMATION SINGLE SHAREHOLDER'S AUTHORITY TO ACT PROXY REPRESENTATION

3 24 RECORD DATES SHAREHOLDERS MEETINGS NOTICE OF SHAREHOLDERS MEETINGS CONDUCT OF MEETINGS SHAREHOLDER MEETING QUORUM AND ADJOURNMENT CHAIRPERSON OF SHAREHOLDERS MEETINGS SHAREHOLDERS RESOLUTIONS WRITTEN RESOLUTIONS BY SHAREHOLDERS PART E DIRECTORS POWERS AND PROCEEDINGS AUTHORITY OF THE BOARD OF DIRECTORS APPOINTMENT OF DIREC TORS ALTERNATE DIRECTORS BOARD COMMITTEES CHAIRPERSON OF THE BOARD DIRECTORS MEETINGS WRITTEN RESOLUTIONS BY DIRECTORS EXECUTIVE DIRECTORS PAYMENTS TO DIRECTORS BORROWING POWERS INDEMNIFICATION AND INSURANCE FOR DIRECTORS PART F GENERAL PROVISIONS FINANCIAL STATEMENTS AND ACCESS TO COMPANY INFORMATION FINANCIAL ASSISTANCE DISTRIBUTIONS FUNDAMENTAL TRANSACTIONS NOTICES

4 PART A THE MOI AND RULES 1 INTERPRETATION In this MOI, article headings are used for convenience only and shall not be used in its interpretation and, unless the context clearly indicates a contrary intention, an expression that denotes any gender, includes the other genders; a natural Person, includes an artificial or juristic Person and vice versa; the singular, includes the plural and vice versa; 1.2 the following expressions shall bear the meanings assigned to them below and cognate expressions shall bear corresponding meanings, "Auditors" - the auditors of the Company appointed from time to time by the Board; "Board" - the board of Directors of the Company from time to time; "Business Day" - any day other than a Saturday, Sunday or public holiday in the Republic; "Central Securities Depository" the Central Securities Depository as defined in section 1 of the Securities Services Act; "Companies Act" - the Companies Act No 71 of 2008, as amended or re-enacted and for the time being in force, including all schedules to such Act and any Regulations promulgated thereunder and for the time being in force; "Company" - the company defined as such on the front page of this MOI; 4

5 1.2.7 "CSDP" - a depository institution accepted by a Central Securities Depository as a "participant" in terms of the exchange operated by the JSE in the Republic; "Director" a director of the Company; "JSE" JSE Limited (registration number 2005/022939/06), a public company duly incorporated in accordance with the laws of the Republic, licensed as an exchange under the Securities Services Act; "JSE Listings Requirements" the JSE Listings Requirements of the JSE and all other applicable rules, regulations, requirements and rulings of the JSE. Any requirements of this MOI in relation to such JSE Listings Requirements shall only apply for as long as the Securities of the Company are listed on the JSE; "Legal Representative" - any Person who has submitted proof (which is satisfactory to the Board) of his appointment (and, to the extent required by the Board, the continuation of that appointment) as an executor of the estate of a deceased Shareholder, or a curator, guardian or trustee of a Shareholder whose estate has been sequestrated or who is otherwise under any disability; the liquidator of any Shareholder that is a body corporate in the course of being wound-up; or the business rescue practitioner of any Shareholder which is a company undergoing business rescue proceedings; "Memorandum of Incorporation" or "MOI" - the memorandum of incorporation of the Company, being this document (and including any Schedules hereto), as amended or replaced from time to time; "Ordinary Share" - an ordinary share in the capital of the Company, having the preferences, rights, limitations and other terms contemplated in article 9; 5

6 "Ordinary Shareholder" - a Shareholder who holds an Ordinary Share; "Person" or "Entity"- includes any natural or juristic person, association, business, close corporation, company, concern, enterprise, firm, partnership, joint venture, trust, undertaking, voluntary association, body corporate and any similar entity; "Regulations" - the Companies Regulations of 2011, and any other regulations made in terms of the Companies Act for so long as they remain of force and effect; "Republic" - the Republic of South Africa; "Securities" collectively Shares, debentures, notes, bonds, units or other instruments, irrespective of their form or title (including any options thereon and rights thereto) issued or authorised to be issued by the Company; and anything falling within the meaning of the definition of "securities" as defined in section 1 of the Securities Services Act; "Securities Services Act" the Securities Services Act No 36 of 2004; "SENS" the Securities Exchange News Service established and operated by the JSE; "Share" a share (as defined in the Companies Act) of the Company, which shall include Ordinary Shares; "Shareholder" - a holder of a Share who is entered as such in the Securities Register of the Company; 6

7 "Sign" - includes the reproduction of a signature by lithography, printing, or any kind of stamp or any other mechanical or electronic process, and "Signature" has the corresponding meaning; "Sub-Register" the record of Uncertificated Securities administered and maintained by a CSDP, which forms part of the Securities Register in terms of the Companies Act; 1.3 any reference to any statute, regulation or other legislation shall be a reference to that statute, regulation or other legislation as at the date on which this MOI was tabled and adopted at the general meeting of the Company and as amended or substituted from time to time; 1.4 if any provision in a definition is a substantive provision conferring a right or imposing an obligation on any Person, then, notwithstanding that it is only in a definition, effect shall be given to that provision as if it were a substantive provision in the body of this MOI; 1.5 the use of the word "including", "includes" and "include", followed by a specific example/s, shall not be construed as limiting the meaning of the general wording preceding it and the eiusdem generis rule shall not be applied in the interpretation of that general wording or those specific example/s; 1.6 where any term is defined within a particular article other than this article 1, that term shall bear the meaning ascribed to it in that article wherever it is used in this MOI; 1.7 any capitalised word or expression that is not otherwise defined in this MOI shall be construed in accordance with the Companies Act. For the avoidance of doubt, it is recorded that any reference to "Present at such Meeting" or "Present at the Meeting" shall be construed in accordance with the definition of "Present at a Meeting" in the Companies Act; 1.8 a reference to a "section" refers to the corresponding section of the Companies Act; 7

8 1.9 this MOI shall be deemed to authorise the Company to do anything which the Companies Act empowers a company to do if so authorised by its MOI, unless that authority is expressly excluded by this MOI; 1.10 references in the left-hand margins to sections of the Companies Act designated by the letter "S" and the numbers of the sect ions referred to are for information purposes only and shall not be used in the interpretation of this MOI; 1.11 the headings of articles in this MOI are for information purposes only and shall not be used in the interpretation of this MOI; and 1.12 save to the extent otherwise provided by this MOI, the provisions of the Company's MOI in force immediately prior to the adoption of this MOI shall, to the exclusion of this MOI, continue to regulate any matter which, by the provisions of the Companies Act, continues t o be regulated by the law relating to companies as it existed immediately prior to the coming into operation of the Companies Act. 2 CONFLICTS WITH THE MOI In accordance with the Companies Act, in any instance where there is a conflict between a provision (be it express or tacit) of this MOI and an alterable or elective provision of the Companies Act, the provision of this MOI shall prevail to the extent of the conflict, and to the extent that such alterable or elective provision of the Companies Act expressly allows for the Company to adopt the conflicting provision; 2.2 an unalterable or non-elective provision of the Companies Act, the unalterable or non-elective provision of the Companies Act shall prevail to the extent of the conflict. 3 AMENDMENT OF THE MOI S15(2)(b) S15(2)(c) S16 S Every provision of this MOI is capable of amendment in accordance with sections 16(1)(a), 16(1)(c), and 152(6)(b) of the Companies Act, and, 8

9 accordingly, there is no provision of this MOI which may not be amended as contemplated in section 15(2)(b) or 15(2)(c) of the Companies Act. 3.2 This MOI may only be altered or amended - S16(1)(a) in compliance with a court order on the basis set out in section 16(1)(a) and 16(4) of the Companies Act and any other applicable provisions of the Companies Act; or by way of a Special Resolution of the Shareholders passed in accordance S16(1)(c) with section 16(1)(c) of the Companies Act, read in conjunction with the remaining provisions of the Companies Act and this MOI [LR SCH. 10.5(d)]; or as contemplated in section 17 and 152(6)(b) of the Companies Act. 3.3 Save as specifically provided for in article 3.2, this MOI is not capable of amendment by any other method. Accordingly, the provisions of section 16(1)(b) of the Companies Act shall not apply, nor shall any other alterable provisions of the Companies Act that allows for a method for the alteration or amendment of the MOI other than those methods contemplated in article 3.2 apply. 3.4 Any change to the name of the Company and any variation of the share capital of the Company referred to in article 10.3 shall be effected by an amendment to this MOI by way of a Special Resolution as referred to in article [LR SCH. 10.5(d)(vii)] 4 RULES S15(3) The Board is prohibited from making, amending or appealing any Rules and the authority of the Board in this regard is hereby excluded. [LR SCH. 10.4] 9

10 PART B STATUS AND POWERS OF THE COMPANY 5 STATUS AS PUBLIC COMPANY 5.1 The Company is a Pre-Existing Company, and accordingly continues to exist as if it had been incorporated and registered in terms of the Companies Act. 5.2 The Securities issued by the Company are freely transferable, subject to compliance with the procedural requirements for transfer contained in article The Company is entitled to offer its Securities to the public, subject to compliance with this MOI and the Companies Act. 5.4 The Company is, accordingly, classified as a public company in terms of section 8(2) of the Companies Act. 6 POWERS OF THE COMPANY 6.1 The Company is governed by the Unalterable Provisions of the Companies Act; the Alterable Provisions of the Companies Act, subject to the extensions, limitations, substitutions or variations set out in this MOI; and the other provisions of this MOI. 6.2 The Company has, subject to section 19(1)(b)(i) of the Companies Act, all of S19(1)(b)(ii) the legal powers and capacity of an individual, and the legal powers and capacity of the Company are not subject to any restrictions, limitations or qualifications contemplated in section 19(1)(b)(ii) of the Companies Act. 6.3 There is no provision of this MOI which constitutes a restrictive condition as contemplated in section 15(2)(b) of the Companies Act. 6.4 No Special Resolution contemplated in section 20(2) or section 20(6) of the Companies Act to ratify any action which is contrary to the JSE Listings 10

11 Requirements shall be proposed to the Shareholders unless otherwise agreed to by the JSE. [LR SCH. 10.3] 7 LIMITATION OF LIABILITY S19(2) No Person shall, solely by reason of being an Incorporator, Shareholder or Director of the Company, be liable for any liabilities or obligations of the Company. PART C CAPITALISATION AND SECURITIES OF THE COMPANY 8 SHARE CAPITAL S36(1)(a) The numbers and classes of Shares which the Company is authorised to issue are set out in Schedule 1 to this MOI. 9 RIGHTS OF THE ORDINARY SHARES S36(1)(b) Each Ordinary Share in the issued capital of the Company ranks pari passu with, and is identical in all respects to, every other Ordinary Share in respect of all rights, and entitles its holder to - [LR SCH. 10.5(a)] 9.1 the right to be entered into the Securities Register as the registered holder of an Ordinary Share; 9.2 exercise one vote on any matter to be decided by Shareholders of the Company (other than matters which are, in terms of this MOI or the Companies Act, to be decided solely by the holders of any other class/es of Share(s)); [LR SCH. 10.5(a)] / [LR SCH. 10.5(b)] 9.3 participate equally with every other Ordinary Share in any Distribution (excluding any payment in lieu of a capitalisation share and any consideration payable by the Company for any of its own Shares or for any shares of another company within the same group as contemplated in paragraphs (ii) and (iii) of the definition of Distribution in the Companies Act) to Ordinary Shareholders, whether during the existence of the Company or upon its dissolution. 11

12 10 VARIATION OF SHARE CAPITAL S36(3) 10.1 Notwithstanding the provisions of section 36(3) of the Companies Act, the Board shall not have the power to increase or decrease the number of authorised Shares of any class of the Shares; reclassify any classified Shares that have been authorised but not issued; classify any unclassified Shares that have been authorised but not issued; or determine the preferences, rights, limitations or other terms of any Shares, which powers shall only be capable of being exercised by the Shareholders, as contemplated in article [LR SCH. 10.5(d)] 10.2 Each Share issued by the Company shall entitle its holder to vote on any proposal to amend the preferences, rights, limitations or other terms associated with that Share. [LR SCH. 10.5(e)] S36(2) 10.3 The Shareholders may, by amendment to the MOI by way of a Special Resolution adopted in accordance with the MOI and in accordance with the JSE Listings Requirements increase or decrease the number of authorised Securities of any class; [LR SCH. 10.5(d)(iv)] reclassify any classified Securities that have been authorised but not issued; classify any unclassified Securities that have been authorised but not issued; or 12

13 determine the preferences, rights, limitations or other terms of any Securities which have been authorised (but not yet issued) without such preferences, rights, limitations or other terms having been determined; [LR SCH. 10.5(d)(ii)] create any class of Securities; [LR SCH. 10.5(d)(i)] convert one class of Securities into one or more other classes of Securities, and convert par value shares into no par value shares; [LR SCH. 10.5(d)(iii)] consolidate any number of Securities of the same class into a lesser number of Securities of the same class or subdivide any Security into a number of Securities of the same class; [LR SCH. 10.5(d)(v) and (vi)] vary any preferences rights, limitations or other terms of any class of Securities already in issue, but no such variation shall be implemented unless it has been approved by a Special Resolution adopted by the holders of that class of Securities at a separate meeting; and [LR SCH. 10.5(e)] if there is any other class/es of Securities in issue, it has also been approved by a Special Resolution adopted by the holders of all Securities of the Company entitled to vote thereon (including, subject to the provisions of article 30.3, the holders referred to in Article ) which Special Resolution shall only be proposed after the Special Resolution referred to in has been passed. [LR SCH. 10.5(d), LR SCH. 10.5(e) and LR SCH. 10.9(c)] 10.4 The preferences, rights, limitations or any other terms of any class of Shares must not be varied in response to any objectively ascertainable external fact or facts as provided for in sections 37(6) and 37(7) of the Companies Act and the powers of the Board are limited accordingly. [LR SCH. 10.5(g)] 13

14 11 ISSUE OF SECURITIES 11.1 The Company may only issue Securities which are freely transferable and only S38 within the classes and to the extent that those Securities have been authorised by or in terms of this MOI. [LR SCH. 10.2(a)] 11.2 Notwithstanding the provisions of section 40(5), all Securities of the Company for which a listing is sought on the JSE must, unless otherwise required by any statute, only be issued after the Company has received the consideration approved by the Board for the issuance of such Securities. [LR SCH. 10.2(a)] 11.3 The Board may only authorise the issue of any Securities to any Person/s in accordance with the Companies Act and, in particular, with the approval of a Special Resolution if required by section 41 of the Companies Act; in accordance with the JSE Listings Requirements, particularly for any issue for cash, shares, options or convertible Securities; in accordance with this MOI and, in particular, any rights specifically conferred on any class of issued Securities; if such Shares have first been offered to all existing holders of Shares of that class of Shares (or, if there are no Shares of that class in issue, to the Ordinary Shareholders) pro-rata in proportion to their existing shareholdings at a subscription price which (ignoring any commission referred to in article 12 or any discount not exceeding 10% which may be granted instead of such commission) is not higher than the subscription price at which they will be issued to that Person/s; provided that the pre-emptive right stipulated in this article shall not apply to any issue of Shares pursuant to the exercise of any option granted in accordance with this MOI and the Companies Act; or 14

15 in terms of any employee share scheme (as defined in section 95(1)(c) of the Companies Act) of the Company; or in consideration for the acquisition by the Company of any assets, including any Securities in another company. Save as provided for in this article or specifically included as one of the rights, preferences or other terms upon which any class of Shares is issued, no Shareholder shall have any pre-emptive or other similar preferential right to be offered or to subscribe for any additional Securities issued by the Company; subject to the provisions of this article 11.3, with the approval of an Ordinary Resolution of the Shareholders in general meeting. Any such Ordinary Resolution (or Special Resolution required by any other provision of this article 11.3) may authorise the Board to issue Securities of the Company at any time and/or grant options to subscribe for Securities of the Company as the Directors in their discretion think fit, provided that such transaction(s) has/have been approved by the JSE and comply/ies with the JSE Listings Requirements. [LR SCH. 10.1] 12 COMMISSION The Company shall not pay commission exceeding 10% to any Person in consideration for their subscribing or agreeing to subscribe, whether absolutely or conditionally, for any Securities of the Company. [LR SCH ] 13 REGISTER AND CERTIFICATES S49(2) 13.1 The Securities issued by the Company shall be issued in Certificated or Uncertificated form. S50(1) 13.2 The Company shall establish or cause to be established, and shall maintain, a Securities Register in accordance with the Companies Act and the Regulations and, to the extent that the form of and the manner of maintaining the Securities Register is not prescribed, the Board shall determine the form and manner thereof. 15

16 13.3 The Company shall enter into its Securities Register the transfer of any S51(5) S51(6) Certificated Securities which is effected in accordance with article 14 and shall include in such entry the information required by section 51(5) of the Companies Act The certificates evidencing any Certific ated Securities of the Company shall S51(1) comply with the requirements set out in section 51(1) of the Companies Act and shall otherwise be in such form as may be determined by the Board If any certificate is defaced, lost or destroyed, it may be replaced on payment of such fee, if any, and on such terms as the Board may determine. S52 14 TRANSFER AND CONVERSION OF SECURITIES 14.1 Save in the case of a transfer which is effected by operation of law and overrides the requirements of this MOI, no person may transfer any Securities in the Company to any other person without first complying with the requirements for transfer as set out in this MOI Transfer of ownership in any Uncertificated Securities shall be effected in accordance with the provisions of the Companies Act. The conversion of Certificated Securities to Uncertificated Securities or of Uncertificated Securities to Certificated Securities shall occur in accordance with the Regulations, any applicable provisions of the Securities Services Act and any applicable requirements or rules of the JSE, STRATE and the relevant CSDP or Central Securities Depositary The Company shall not enter into its Securities Register the transfer of any Certificated Securities, unless the transfer is evidenced by a proper instrument of transfer Signed by the transferor and transferee, the form of which shall be determined by the Board from time to time or in the absence of any such determination shall be in such common form as may be ac ceptable to the Board, which has been delivered to the Company at its Registered Office together with 16

17 such proof as the Board may require of the authority of the signatory/ies to that instrument of transfer; and the certificate in respect of Securities being transferred; or the transfer was effected by operation of law Subject to the provisions of this Memorandum of Incorporation, every instrument of transfer and accompanying documents received by the Company referred to in article shall be deemed to remain in full force, and the Company may allow the same to be acted upon, until written notice of revocation thereof is lodged at the Registered Office. Even after the giving and lodging of such notice of revocation, the Company shall be entitled to give effect to any duly Signed instrument of transfer which was accepted and certified by any officer of the Company as being in order before the giving and lodging of such notice of revocation. [LR SCH. 10.2(b)] 14.5 Fully paid Securities shall not be subject to any lien in favour of the Company and shall be freely transferable. [LR SCH ] 15 CAPITALISATION SHARES S47(1) 15.1 The Board shall have the power and the authority to approve the issuing of any authorised Shares as capitalisation shares; or subject to article 15.2, have the power and the authority to resolve to permit the Shareholders to elect to receive a cash payment in lieu of a capitalisation share, [LR SCH. 10.7] but the Board shall not have the power or authority to issue Shares of one class as capitalisation shares in respect of the Shares of another class unless specifically authorised by the Shareholders by means of an Ordinary Resolution authorising the specific transaction contemplated. The authority of the Board to issue capitalisation shares in accordance with section 47(1) of the 17

18 Companies Act is accordingly limited and restricted by this Memorandum of Incorporation The Board may not resolve to offer a cash payment in lieu of awarding a capitalisation share, as contemplated in section 47(2) of the Companies Act, unless the Board has considered the Solvency and Liquidity Test as required by section 46, on the assumption that every such Shareholder would elect to receive cash; and is satisfied that the Company would satisfy the Solvency and Liquidity Test immediately upon the completion of the Distribution. [LR SCH. 10.6] 15.3 If, on any capitalisation issue, Shareholders would, but for the provisions of this article 15, become entitled to fractions of Shares, the Board shall, subject to any contrary provisions in the Resolution authorising the capitalisation issue but subject to the JSE Listings Requirements, be entitled to round off the number of capitalisation shares to be received to the nearest whole number or to sell the Shares resulting from the aggregation of those fractions, on such terms and conditions as it deems fit, for the benefit of the relevant Shareholders, and any Director shall be empowered to Sign any instrument of transfer or other instrument necessary to give effect to that sale. S48 16 ACQUISITION OF SHARES ISSUED BY THE COMPANY Subject to the provisions of the Companies Act and the JSE Listings Requirements, the Company may acquire any Shares issued by the Company on the basis that 16.1 all or a portion of the price payable on such acquisition may be paid out of the funds of or available to the Company whether or not such payment results in a reduction of the share capital, stated capital, reserves, any capital redemption reserve fund and/or any other account of the Company; and 18

19 16.2 the Shares so acquired shall be restored to the status of unissued shares and the authorised share capital of the Company shall remain unaltered. [LR SCH. 10.9(b)] 17 DEBT INSTRUMENTS S43(2) S43(3) 17.1 The Board may authorise the Company to issue secured or unsecured debt instruments as set out in section 43(2) of the Companies Act; provided that the Board shall not be entitled to issue any debt instruments that grants the holder thereof any rights regarding attending and voting at general meetings and the appointment of Directors; and the receipt by the holder thereof of anything other than repayment of the capital amount thereof and payment of interest thereon, all in cash, without the approval of the Shareholders by way of a Special Resolution. Without limiting the aforegoing, it is recorded that a debt instrument may not confer on its holder any right to receive any Shares or other Securities of the Company (whether on conversion or redemption or repurchase of the debt instrument or otherwise) without the approval of a Special Resolution The authority of the Board to authorise the Company to issue secured or unsecured debt instruments, as set out in section 43(2), is accordingly limited or restricted by this Memorandum or Incorporation. [LR SCH ] 18 BENEFICIAL INTERESTS S56(1) Securities issued by the Company may be held by, and registered in the name of, one Person for the beneficial interest of another Person, but no Person other than the registered holder of a Security shall (save to the extent expressly provided for in this MOI) be entitled to exercise any of the rights associated with that Security and the Company shall not recognise any Person other than the registered holder of a Security as the holder (whether beneficial or otherwise) of that Security. The holding of the Company's Securities by a registered holder for the beneficial interest of another Person is accordingly limited and restricted by this MOI. 19

20 19 JOINT HOLDERS OF SECURITIES Where two or more Persons are registered as the holders of any Security, they shall be deemed to hold that Security jointly and notwithstanding anything to the contrary contained anywhere else in this MOI, on the death, sequestration, liquidation or legal disability of any one of those joint holders who is not represented by a Legal Representative as referred to in article 20, the remaining joint holders may be recognised, at the discretion of the Board, as the only Persons having title to that Security; 19.2 any one of those joint holders may give effective receipts for any Distributions or other payments or accruals payable to those joint holders; 19.3 only the joint holder whose name stands first in the Securities Register shall be entitled to delivery of the certificate relating to that Security, or to receive notices or payments from the Company (and any notice or payment given to that joint holder shall be deemed to be notice or payment, as the case may be to all of the joint holders); 19.4 any one of the joint holders of any Security conferring a right to vote on any matter may vote either personally or by proxy at any meeting in respect of that Security as if he were solely entitled to exercise that vote, and, if more than one of those joint holders is present at any meeting of Shareholders, either personally or by proxy, the joint holder who tenders a vote (including an abstention) and whose name stands in the Securities Register before the other joint holders who are present, in person or by proxy, shall be the joint holder who is entitled to vote in respect of that Sec urity. 20 LEGAL REPRESENTATIVES A Legal Representative of the holder of any Security issued by the Company ("Security Holder") shall 20.1 be the only Person recognised by the Company as having any rights in respect of or title to a Security registered in the name of the Security Holder whom he represents; provided that if a Security Holder or his Legal Representative is a 20

21 joint holder of that Security, then this article 20.1 shall not detract from article 19 and this article 20.1 shall be read together with article 19; and 20.2 if so required by that Legal Representative or by the Board, be entered into the Securities Register of the Company nomine officio in the place and on behalf of that Security Holder, provided that if the Legal Representative so entered into the Securities Register ceases to be the Legal Representative of that Security Holder, the Board shall, pending transfer of that Security to another Legal Representative of that Security Holder or any other Person who is entitled to become the holder of that Security, be entitled to suspend the rights of the holder of that Security to vote and shall be entitled to withhold (and retain until suc h transfer has occurred) all Distributions payable to the holder of that Security; and 20.4 that Security Holder shall not, merely by virtue of the appointment, or entry into the Securities Register of the Legal Representative, be released from any obligation arising out of or in connection with the holding of that Security; 20.5 Securities registered in the name of a deceased or insolvent Security Holder shall not be forfeited if such Security Holder's executor or trustee fails to register them in his own name or in the name of the heir(s) or legatees, when called upon by the Directors to do so. [LR SCH.10.13] PART D SHAREHOLDERS RIGHTS AND PROCEEDINGS 21 SHAREHOLDERS RIGHT TO INFORMATION Each Shareholder and each Person who is the registered holder of, or holds a S26(1) beneficial interest in, any Securities issued by the Company shall have the information rights set out in section 26(1) of the Companies Act. 22 SINGLE SHAREHOLDER'S AUTHORITY TO ACT As contemplated in section 57(2) of the Companies Act, if, at any time, the Company has only one Shareholder 21

22 22.1 that Shareholder may exercise any and all of the Voting Rights pertaining to the Company, at any time, without notice or compliance with any other internal formalities, and that power is not limited or restricted by this MOI; and 22.2 the provisions of articles 24 (Record Dates), 26 (Notice to Shareholders Meetings), 27 (Conduct of Shareholders Meeting), 28 (Shareholder Meeting Quorum and Adjournment), 30 (Shareholder Resolutions) and 31 (Shareholders Acting Other Than at a Meeting) shall not apply. 23 PROXY REPRESENTATION S58(1) 23.1 A Shareholder may, at any time by written proxy appointment ("Proxy Instrument") which complies with this MOI and the Companies Act, appoint any individual, including an individual who is not a Shareholder of the Company, as a proxy to participate in, and speak and vote at, a Shareholders Meeting on behalf of the Shareholder; or give or withhold written consent on behalf of the Shareholder to a decision contemplated in article 31, and any such proxy appointment (and any invitat ion by the Company to appoint a proxy and any form supplied by the Company for use as a Proxy Instrument) shall be governed by section 58 of the Companies Act and this article The Board may determine a standard form of Proxy Instrument and make it available to Shareholders on request Subject to the provisions of the Companies Act, a Proxy Instrument may be an instrument created or transmitted by electronic or other means, including electronic mail or facsimile. 22

23 23.4 A Proxy Instrument which complies with the Companies Act and this MOI shall, subject to the article 23.7 and if any meeting to which it relates is adjourned or postponed, unless the contrary is stated thereon, be valid at that meeting when it resumes after such adjournment or commences after such postponement, even if it had not been lodged timeously for use at the meeting as originally scheduled (prior to the adjournment or postponement) A Shareholder may not appoint more than one Person concurrently as proxies, S58(3)(a) and may not appoint more than one proxy to exercise Voting Rights attached to different Securities held by the Shareholder; provided that a Shareholder shall be entitled to appoint more than one alternative proxy in terms of the Proxy Instrument A proxy may not delegate the proxy s authority to act on behalf of the S58(3)(b) Shareholder to another Person, unless the right to delegate is specifically contained in the Proxy Instrument and the delegation occurs by way of a further Proxy Instrument which itself complies with the requirements of the Companies Act and this MOI A proxy shall not be entitled to exercise any rights of the Shareholder who S58(3)(c) S58(5) appointed that proxy until the expiry of two Business Days after the date on which the Proxy Instrument containing the appointment of that proxy was delivered; or if such proxy is revocable and is revoked by such Shareholder in writing and such written revocation was delivered (at least one Business Day before the relevant Shareholders meeting or (if applicable) adjourned or postponed Shareholders meeting), to the Registered Office of the Company (marked urgent and for the attention of the Company Secretary, Chairperson or Managing Director of the Company and accompanied by such proof of the identity and authority of the signatory as may reasonably be required by the Board or the chairperson of any meeting at which the proxy wishes to exercise any rights of the Shareholder) or to any other Person entitled to accept the Proxy Instrument or revocation on behalf of the Company; provided that 23

24 any such revocation shall be effective on the later of the date stated in the written revocation or the date on which the written revocation was delivered to the Registered Office of the Company in accordance with this article 23.7; the Board, or the chairperson of any meeting at which the proxy wishes to exercise any rights of the Shareholder, may agree to allow any such Proxy Instrument or revocation to become effective prior to the time when it would otherwise have become effective in terms of this article 23.7 S58(7) 23.8 A proxy shall, as contemplated in section 58(7) of the Companies Act, be entitled, in the Proxy's own discretion, to exercise, or abstain from exercising, any voting right of the Shareholder; provided that if the Proxy Instrument specifically provides otherwise then the specific provisions of the Proxy Instrument shall prevail. 24 RECORD DATES S59(1) S59(2) The Board may, in accordance with section 59 of the Companies Act and the Regulations, determine and publish a Record Date for the purposes of determining which Shareholders are entitled to receive a notice of a Shareholders Meeting; 24.2 participate in and vote at a Shareholders Meeting; 24.3 decide any matter by written consent or by Electronic Communication; 24.4 receive a Distribution; or 24.5 be allotted or exercise any other rights, 24

25 S59(3) provided that 24.6 if the Board does not determine a Record Date for any action or event, as contemplated in this article 24, the Record Date shall, subject to article 24.7, be as determined in accordance with section 59(3) of the Companies Act; and 24.7 whilst the Shares of the Company are listed on the JSE, the Record Date shall be determined in accordance with the JSE Listings Requirements. [LR SCH ] 25 SHAREHOLDERS MEETINGS S61(2)(a) 25.1 The Company shall not be required to hold any meetings of Shareholders other than those required by the Companies Act and/or the JSE Listings Requirements. [LR SCH (d)] 25.2 Without limiting the foregoing, the Company shall hold a Shareholders meeting in the circumstances contemplated in section 61(2) of the Companies Act. S61(3) 25.3 The Board (or any Prescribed Officer of the Company authorised by the Board) is entitled to call a Shareholders' Meeting at any time. S61(9) 25.4 The Board shall determine the location for any Shareholders Meeting of the Company and the Company may hold any such meeting in the Republic or any foreign country and, accordingly, the authorit y of the Board, as contemplated in section 61(9) of the Companies Act, is not limited or restricted by this MOI. 26 NOTICE OF SHAREHOLDERS MEETINGS 26.1 The Company must deliver notice of each Shareholders' Meeting to all Shareholders as of the Record Date for receiving notice of that Shareholders' Meeting; and the JSE, 25

26 at least fifteen Business Days before that Shareholders' Meeting is to begin; and simultaneously with delivery of any notice in terms of article , announce such notice through SENS. [LR SCH (a), (b) and (f)] S62(3) 26.2 The notice of a Shareholders Meeting shall be in writing and shall include the items set out in section 62(3) of the Companies Act The notice of a Shareholders Meeting must be delivered in accordance with the provisions of article CONDUCT OF MEETINGS 27.1 The Company - S63(2)(a) may, as contemplated in section 63 of the Companies Act, provide for a Shareholders Meeting to be conducted in whole or in part by Electronic Communication; and S61(10) S63(2)(b) must always make reasonable provision for any Shareholder, or proxy for a Shareholder, to participate by Electronic Communication in every Shareholders Meeting that is being held in person, irrespective of whether such meeting is held in the Republic or elsewhere, S61(2) and any Electronic Communication facility so employed must ordinarily enable all Persons participating in the meeting to at least speak and hear each other at approximately the same time and to participate reasonably effectively in the meeting, with or without an intermediary. The authority of t he Company shall be limited and restricted accordingly Subject to article 27.1, the responsibility for, and any expense of gaining access to the medium or means of Electronic Communication employed for any Shareholders Meeting shall be that of the Shareholder or proxy. If a provision has been made for a Shareholders Meeting to be conducted by Electronic Communication or for participation in a Shareholders Meeting by Electronic 26

27 Communication and the medium or means of such Electronic Communication is available, functioning and reasonably accessible, then the Shareholders Meeting shall be entitled to proceed even if a Shareholder or proxy is not able to gain access to the medium or means of Electronic Communication so employed The Company shall ensure that any notice of any meeting of Shareholders, at S63(3)(a) which it will be possible for Shareholders to participate by way of Electronic Communication, shall inform Shareholders of that form of participation and shall provide any necessary information to enable Shareholders or their proxies to access the available medium or means of Electronic Communication A resolution passed at any meeting that employs Electronic Communication shall, notwithstanding that the Shareholders are not present together in one place at the time of the meeting, be deemed to have been passed at a meeting duly called and constituted on the day on which, and at the time at which, the meeting was so held. For the avoidance of doubt, it is recorded that all of the provisions of articles 27 to 31 shall apply to these meetings At a meeting of Shareholders a resolution put to the vote shall be decided by a S63(4) poll and not by a show of hands. 28 SHAREHOLDER MEETING QUORUM AND ADJOURNMENT S64(1) 28.1 The quorum requirements for meetings of Shareholders shall, subject to article 28.5, be that such a meeting shall not begin unless sufficient Persons (being not less than three in number who are entitled) are Present at such Meeting to exercise, in aggregate, at least 25% of all Voting Rights that are entitled to be exercised in respect of at least one matter to be decided at the meeting. Once such a quorum has been established, all the shareholders of the quorum must be present at the meeting to hear any matter that must be considered at the meeting; and [LR SCH (h)] the consideration of a matter to be decided at the meeting shall not begin or continue unless sufficient Persons (being not less than three in number 27

28 who are entitled) are Present at such Meeting to exercise, in aggregate, at least 25% of all Voting Rights that are entitled to be exercised on that matter. S64(4) 28.2 Notwithstanding the provisions of section 64(4) of the Companies Act and article 28.1, if, within thirty minutes after the appointed time for a meeting the quorum requirements for a meeting to begin have not been satisfied, the meeting shall automatically be postponed without motion or vote to the same day (or if that day is not a Business Day, the next Business Day) in the next week; the quorum requirements for consideration of a particular matter to begin or continue have not been satisfied, then if there is other business on the agenda of the meeting, consideration of that matter may be postponed to a later time in the meeting without motion or vote; or if there is no other business on the agenda of the meeting, the meeting is adjourned, without motion or vote, to the same day (or if that day is a public holiday, the next Business Day) in the next week The adjourned or postponed meeting may only deal with the matters that were on the agenda of the meeting that was adjourned or postponed The chairperson of the meeting shall be entitled to extend the thirty minute S64(5) limit referred to in article 28.2 in the circumstances contemplated in section 64(5) of the Companies Act If, at the time appointed in terms of this article 28 for an adjourned meeting to S64(8) resume, or for a postponed meeting to begin, the quorum requirements have not been satisfied, the Shareholders present in person or by proxy will be deemed to constitute a quorum. 28

29 28.6 A Shareholders Meeting, or the consideration of any matter being debated at a S64(10) S64(11) S64(12) Shareholders Meeting, may be adjourned as contemplated in sections 64(10), 64(11) and 64(12) of the Companies Act, it being recorded that the periods of adjournment set out in section 64(12) shall apply without variation The Board may, at any time after notice of a Shareholders Meeting has been given but prior to the commencement of that meeting, postpone that meeting to such later date as may be determined by the Board at the time of determining to postpone the meeting, or may be postponed to an unspecified date to be decided by the Board at a later stage; provided that the Board may not so postpone the date of any such meeting beyond that date (if any) by which that meeting is required by the Companies Act or this MOI to be held If a Shareholders Meeting is postponed or adjourned, whether in terms of article 28.2 or otherwise, the Company must, by announcement on SENS, give S64(7)(a) S64(7)(b) notice to all Shareholders who were entitled to receive notice of the meeting of the postponement or adjournment and that notice must contain the t ime and date of, and the location for, the continuation or resumption of the meeting and any other information which the Board may decide to include therein Even if he is not a Shareholder any Director; or the Company's attorney (or where the Company's attorneys are a firm, any partner, director or employee thereof) or other person admitted and permitted to speak by the chairperson of the meeting, may attend and speak at any Shareholders Meeting, but may not vote, unless he is a Shareholder or the proxy or representative of a Shareholder. 29 CHAIRPERSON OF SHAREHOLDERS MEETINGS 29.1 The chairperson of the Board or, failing him, the deputy chairperson of the Board (or if more than one of them is present and willing to act, the most senior of them) shall preside as the chairperson of each Shareholders Meeting; provided that, if no chairperson or deputy chairperson is present and willing to 29

30 act, the Shareholders present shall elect one of the Directors or, if no Director is present and willing to act, a Shareholder, to be the chairperson of that Shareholders Meeting The chairperson of a Shareholders Meeting shall, subject to the Companies Act and this MOI, determine the procedure to be followed at that meeting but shall not have a second or casting vote at any Shareholders Meeting. 30 SHAREHOLDERS RESOLUTIONS 30.1 At any meeting of Shareholders, any Person who is Present at the Meeting, S63(6) whether as a Shareholder or as a proxy for a Shareholder, shall be entitled on a poll, to exercise the number of Voting Rights associated with the Shares held by such Shareholder, which Voting Rights shall be determined in accordance with the preferences, rights, limitations and other terms of the Shares, as set out in this MOI Any holder of Securities ("Other Security Holder") other than Ordinary Shares ("Other Securities") shall not be entitled to vote on any resolution at a meeting of Shareholders, except during any period while any dividend, any part of any dividend on such other Securities or any redemption payment thereon remains in arrears and unpaid, it being recorded that such period shall commence on the due date of the dividend or redemption payment in question or, where no due date is specified, the expiry of the sixth month after the end of the financial year of the Company in respect of which such dividend accrued or such redemption payment became due; and/or in regard to any resolution proposed for the winding-up of the Company or the reduction of its capital. [LR SCH. 10.5(h)] 30.3 If the Other Security Holders are entitled to vote at the meeting of Ordinary Shareholders as contemplated in article 30.2, then the Other Security Holders shall be entitled to 1 (one) vote for every Other Security held; provided that the total Voting Rights of the Other Security Holders in respect of the Other 30

31 Securities shall not exceed 24.99% of the total votes (including the votes of the Ordinary Shareholders) exercisable at that meeting (and numbers of votes of the Other Security Holders shall be reduced to the extent necessary to give effect to this proviso and on the basis that after such reduction the numbers of votes of each Other Security Holder shall bear the same proportion to the votes of all Other Security Holders as it did before such reduction). [LR SCH (c) & (e)] 30.4 In order for - S65(7) an Ordinary Resolution to be approved, it must be supported by a simple majority of the Voting Rights exercised on the Ordinary Resolution, as contemplated in section 65(7); or S65(10) a Special Resolution to be approved, it must be supported by at least 75% of the Voting Rights exercised on the Special Resolution, as provided in section 65(9), [LR SCH (a)] at a quorate meeting of Shareholders which is quorate in relation to that resolution; provided that this article 30 shall not detract from the Shareholders' ability to adopt resolutions by written vote as referred to in article If any Shareholder abstains from voting in respect of any resolution, that Shareholder will, for the purposes of determining the number of votes exercised in respect of that resolution, be deemed not to have exercised a vote in respect of that resolution. S65(11) 30.6 Except for those matters which require the approval or authority of a Special Resolution in terms of section 65(11), any other section of the Companies Act, any provision of the Regulations, this MOI or the JSE Listings Requirements, no other matters which the Company may undertake require the approval or authority of a Special Resolution of the Shareholders. 31